Opinion
96-CV-1420 (NAM)(GLS).
March 17, 1999
COREY ISAAC, Petitioner, Pro Se, Midstate Correctional Facility, Of Counsel, DARREN O'CONNOR, ESQ., Asst. Attorney General, Marcy, New York.
HON. ELIOT SPITZER, Attorney General of the State of New York Department of Law, The Litigation Bureau, Albany, New York, Attorney for Respondent.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by the Hon. Norman A. Mordue, U.S. District Court Judge, pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c). Petitioner filed the instant habeas corpus petition on September 3, 1996. This court issued an Order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. fol. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. Respondent has filed his answer, together with the pertinent state court records and a memorandum of law. Petitioner filed a traverse on February 24, 1997.
This case was reassigned from Magistrate Judge Hurd to the undersigned on November 21, 1997.
The state court records submitted by respondent are listed in the first paragraph of the answer. (Dkt. No. 7).
Petitioner complains of a judgment of conviction rendered against him on December 2, 1994, following a jury trial in the Onondaga County Court, wherein he was convicted of vehicular manslaughter in the Second Degree, leaving the scene of an accident, reckless driving, failure to obey a police officer, and failure to stop at a red light. Petitioner was sentenced to consecutive indeterminate terms of three and a half to seven years imprisonment for vehicular manslaughter in the Second Degree and one and a third years for leaving the scene of an accident. He received time served for his other convictions.
Petitioner's motion to set aside the verdict pursuant to New York State Criminal Procedure Law § 330.30(1) was denied by the County Court. The Appellate Division, Fourth Department, affirmed the conviction on February 2, 1996. People v. Isaac, 224 A.D.2d 993; 637 N.Y.S.2d 827 (4th Dep't 1996). The New York Court of Appeals denied leave to appeal on June 18, 1996. People v. Isaac, 88 N.Y.2d 937; 647 N.Y.S.2d 170 (1996).
Petitioner raises six claims in his application for habeas corpus relief. Petitioner alleges the following: (1) the trial court erred in denying his motion to suppress the results of a blood test, together with all of the other subsequently acquired information and derivative evidence obtained by the police; (2) his statement was involuntary and was obtained in violation of his right to counsel; (3) he was deprived of a fair trial as a result of the court's erroneous evidentiary ruling regarding police pursuit procedures; (4) the trial court erred in failing to charge justification; (5) the sentence imposed was harsh and excessive; and, (6) he was deprived of the right to a fair trial through cumulative error.
Respondent seeks dismissal of the petition on the grounds that it fails to state a claim upon which relief can be granted. For the following reasons, the court agrees with the respondent and recommends that the petition be denied and dismissed.
1. Facts
Petitioner's conviction resulted from an incident that occurred on a rainy night in Syracuse, New York, on March 21, 1994, wherein petitioner led police on a high-speed chase that ended when his car collided with another, killing the other driver.
Petitioner was initially pulled over by Syracuse Police Officer Wilson for having run a red light. (T. 101). Prior to Officer Wilson exiting the police vehicle, petitioner drove away at a high rate of speed. (T. 103). Petitioner failed to stop at several red lights and stop signs. (T. 105-106).
Several police vehicles joined the pursuit of petitioner's vehicle on Erie Boulevard. (T. 107). Petitioner did not slow down for a police road block. (T. 112; 144). In order to avoid another police vehicle, petitioner exited Erie Boulevard onto the Seeley Road access ramp. (T. 208; 223). At the time, the car was traveling approximately 60 miles per hour. (T. 183). The car failed to make the turn, struck the curb and became airborne. It passed over the median and landed on another car, killing its driver Randy Pacelli. (T. 178; 195)
After the accident, Petitioner fled the scene. (T. 121). He was apprehended by the police approximately two hundred and fifty to three hundred feet down the road. (T. 122). Petitioner's blood test results were positive for the presence of cannabinoids and cocaine metabolites. (T. 288).
At trial, passenger Nicole Giles testified that she kept asking petitioner to be let out of the car. (T. 205). Petitioner said he would let her out as soon as he could, and stated "have faith in your driver." (T.205-206). Petitioner's half-brother and owner of the car, Lawrence Maddox, was also a passenger. Maddox testified that he had advised petitioner earlier in the evening that the car's brakes were bad. (T. 216). According to Maddox, he and petitioner had smoked several "blunts", or marijuana-filled cigars, during that afternoon and evening. (T. 215-217; 231). Maddox testified that he was not concerned about petitioner driving because he [Maddox] was too impaired himself to drive. (T. 228). Maddox testified that, during the chase, he told petitioner to slow down and reminded him that the brakes were bad. (T. 221).
At trial, petitioner admitted that he had smoked marijuana earlier in the day, but denied smoking with Maddox that evening. (T. 378; 388). He testified that he sped away from Officer Wilson because he was scared. Petitioner recounted an incident that occurred on March 12, 1993, when he was beaten by police officers. (T. 364-365). Petitioner denied that Maddox told him the brakes were bad (T. 390), and testified that he had been attempting to end the chase when he braked on the Seeley Road access ramp. (T. 366).
2. Petitioner's Fourth Amendment Claim
In ground one, petitioner argues that he was deprived of his rights pursuant to the Fourth, Fifth and Sixth Amendments to the United States Constitution as result of the court's failure to suppress the results of illegally performed blood tests.
Where state law affords a state prisoner an opportunity for full and fair litigation of a Fourth Amendment challenge, federal habeas corpus review of that claim is curtailed. Stone v. Powell, 428 U.S. 465, 482 (1976). In defining a "full and fair opportunity", the Second Circuit has held that Fourth Amendment claims are reviewable on a habeas petition only when: 1) the state has failed to provide corrective procedures to redress the alleged violations; or, 2) the defendant was precluded from using procedures provided by the state due to an unconscionable breakdown in the underlying process. Cappellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992); Gates v. Henderson, 568 F.2d 830, 836-837 (2d Cir. 1977) (en banc), cert. denied, 434 U.S. 1038 (1978).
Although his pre-trial suppression motion was denied without a hearing, the Appellate Division reconsidered the issue and agreed that the County Court erred by denying petitioner's motion to suppress the blood test results. That Court concluded, however, that "the error is harmless, as the proof of defendant's impairment is overwhelming and there is no significant probability that the error infected the verdict." People v. Isaac, 224 A.D.2d at 994. In his pro se supplemental application seeking leave to appeal to the New York Court of Appeals, petitioner specifically argued that the error was not harmless. The Court of Appeals denied leave.
The court did entertain oral argument on the motion prior to rendering its decision. See Transcript dated August 9, 1994.
The Appellate Division held that the police officer's application for the blood test was defective because it failed to state specific allegations of fact sufficient to demonstrate that "based on the totality of circumstances, there [was] reasonable cause to believe" that defendant was driving the automobile while impaired by drugs. People v. Isaac, 224 A.D.2d at 993; N Y Vehicle and Traffic law § 1194(3)(c).
The court considered evidence as to how the car was being driven, Maddox's testimony that petitioner had smoked three to four marijuana cigarettes one hour before the accident, Giles' testimony that she had smelled marijuana coming from a room where the petitioner, Maddox and another individual were, shortly before the accident, as well as petitioner's own testimony that he had smoked marijuana earlier in the day. People v. Isaac, 224 A.D.2d at 994.
Petitioner cannot claim that the state procedures for litigating his Fourth Amendment challenge were inadequate. New York's procedure for litigating Fourth Amendment claims (N.Y. Crim. Pro. Law § 710) has been approved by federal courts in this circuit. Gates v. Henderson, 568 F.2d at 837 and n. 4; Taylor v. Kuhlman, CV 94-2218, 1999 WL 92884, *12 (E.D.N.Y. Feb. 22, 1999). Nor has petitioner alleged an unconscionable breakdown in the procedure. To do so, he would have had to prove that "no state court conducted a 'reasoned method of inquiry into relevant questions of fact and law' or any inquiry at all into the Fourth Amendment claim." Id. at *12 (citations omitted). Petitioner had a full and fair opportunity to litigate this issue at both the trial and appellate level. Therefore, ground one of the petition should be dismissed.
3. Voluntariness of Statements
In ground two, petitioner claims that his statements were involuntary and were obtained in violation of his right to counsel. He further asserts that the prosecution failed to prove that he knowingly, voluntarily and intelligently waived his rights, in light of his post-accident physical, mental and emotional state as well as his alleged drug ingestion.
After a hearing, petitioner's suppression motion was denied in a written Decision/Order dated October 5, 1994 [Burke, J.]. The court made the following findings of fact: 1) prior to interviewing the petitioner at the scene of the accident, Investigator Gates advised petitioner of his Miranda rights and petitioner indicated his willingness to talk without an attorney; 2) at that time (approximately 10:11 p.m.), petitioner did not appear to have trouble breathing, seeing or focusing his eyes (though they were watery from crying), and he appeared to be in good shape; 3) petitioner was upset and expressed concern about the other driver when he spoke with Officer Baunee at the scene of the accident; 4) although petitioner complained about having trouble breathing and requested his asthma medication, he was alert and responsive; 5) though his eyes were glassy and he was not totally coherent, petitioner talked with Officer Boni en route to the hospital; 6) Officer Boni re-read the petitioner his Miranda rights at 1:00 a.m., after petitioner was arrested and petitioner indicated that he understood his rights; 7) though petitioner would not consent to a blood test without a lawyer, he did not request one or ask for help in contacting one; and, 8) thereafter, petitioner asked to, and did speak with Investigator Baunee without requesting an attorney.
Miranda v. Arizona, 384 U.S. 436 (1966).
The County Court ruled that petitioner was completely advised of his Miranda rights at the scene of the accident by Investigator Gates, and that such rights were re-administered by Officer Boni when petitioner was arrested. The Court held that, both times, petitioner knowingly, voluntarily and intelligently waived his right to counsel by indicating that he was willing to speak without an attorney. Decision/Order, at pp. 5-6. The Court specifically noted that the physical manifestations of petitioner's reaction to the accident did not impair his ability to make a knowing, voluntary and intelligent waiver of his rights. The hearing court also concluded that petitioner did not unequivocally invoke his right to counsel by refusing to consent to a blood test without counsel present. Decision/Order at p. 7. The Court found both waivers were obtained without threats, promises, force or coercion.
Petitioner was described as appearing nervous, crying, upset, not totally coherent and requested breathing medication for his asthma.
The court noted that petitioner had just been advised of his Miranda rights for the second time, and agreed to speak with Officer Boni.
Petitioner raised this issue on direct appeal, and therefore exhausted his state court remedies. The Appellate Division affirmed, noting that "even though petitioner had ingested drugs before the accident, the record shows that he was able to respond intelligently to the questions asked by the interrogating officers." People v. Isaac, 224 A.D.2d at 993. The Appellate Division agreed that petitioner's refusal to consent to a blood test without counsel was not an unequivocal invocation of his right to counsel. Id.
State court findings of fact made after an evidentiary hearing are entitled to a presumption of correctness in a federal habeas corpus proceeding. 28 U.S.C. § 2254(e)(1). Such deference is given to implied as well as express findings of fact, whether they are found by a state trial or appellate court. Whitaker v. Meachum, 123 F.3d 714, 715 (2d Cir. 1997) (citing Ventura v. Meachum, 957 F.2d 1048, 1055 (2d Cir. 1992); Sumner v. Mata, 449 U.S. 539, 546-47 (1981)). Habeas corpus relief on a claim that was adjudicated on the merits by a state court is precluded unless the adjudication itself was contrary to or unreasonably applied clearly established federal law, or was "based on an unreasonable determination of the facts. . . ." 28 U.S.C. § 2254(d).
Applying this standard to the state courts' adjudication on the admissibility of petitioner's statements, habeas corpus relief is not warranted. The state courts concluded on the facts presented that petitioner knowingly, voluntarily and intelligently waived his rights, and agreed to speak with police officers without an attorney present. The courts concluded that petitioner's physical and emotional state did not render his waivers involuntary, and that his request for an attorney was limited to the taking of blood tests. This court finds ample support for the courts' conclusions and that such rulings were not based on an unreasonable determination of the facts.
A voluntary waiver occurs "when the relinquishment is the 'product of free and deliberate choice rather than intimidation, coercion or deception.'" Moran v. Burbine, 475 U.S. 412, 421 (1986). When determining voluntariness of statements made, the courts must consider the totality of the circumstances. Id. at 421. The facts in the instant case do not reveal any evidence of coercion or intimidation. The record supports the finding that petitioner understood his rights and indicated his willingness to talk without a lawyer present. As such, ground two of the petition should be dismissed.
4. Claims Not Cognizable on Federal Habeas Review
A federal court may entertain a habeas petition only to the extent that it alleges custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a). Thus, claims based on violations of state law are not generally cognizable on federal habeas review. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (citing Lewis v. Jeffers, 497 U.S. 764, 780 (1990)) (additional citation omitted); Hameed v. Jones, 750 F.2d 154, 160 (2d Cir. 1984), cert. denied, 471 U.S. 1136 (1985).
A. The County Court's Ruling Regarding Police Departmental Pursuit Policies
In petitioner's third ground for relief, he claims that the trial court improperly denied discovery of the police department's vehicle pursuit policy and erred by ruling that such policy could not be produced at trial. Petitioner argues that this ruling denied him the opportunity to present relevant and material evidence as to the police officers' violation of their own regulations, which he submits escalated the situation and ultimately resulted in the fatal automobile collision. See Petitioner's Appellate Brief, at p. 30.
It is well established that "mere evidentiary errors generally do not rise to a constitutional magnitude." Aponte v. Scully, 740 F. Supp. 153, 158 (E.D.N.Y. 1990) (citations omitted). It is not the province of a federal habeas court to re-examine state court rulings on evidentiary issues. See Estelle v. McGuire, 502 U.S. at 67-69; Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.), cert. denied, 119 S.Ct. 101 (1998); James v. Senkowski, No. 97 Civ. 3327, 1998 WL 217903, *2 (S.D.N.Y. April 29, 1998).
Erroneous exclusion of evidence warrants habeas corpus relief only if the omission deprived the petitioner of a fundamentally fair trial. Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988). The exclusion of evidence violates a petitioner's right to present a defense when "'the omitted evidence [evaluated in the context of the entire record] creates a reasonable doubt that did not otherwise exist.'" Williams v. McCoy, 7 F. Supp.2d 214, 222 (E.D.N.Y. June 3, 1998) (quoting Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996)). See also, United States v. Agurs, 427 U.S. 97 (1976). Whether police violated departmental policies in the manner in which they pursued the petitioner, it does not negate the fact that petitioner fled from police at a high rate of speed after a routine traffic stop, nor that he could have stopped prior to the accident. This court finds no basis for finding that petitioner's trial was rendered fundamentally unfair by the County Court's ruling, or that the evidence, if admitted, would have created a reasonable doubt as to petitioner's guilt.
Therefore, ground three of the petition should be dismissed.
B. Failure to Charge Justification
In ground four, petitioner argues that the trial court erred by failing to charge the jury on justification. Petitioner testified that he became scared when officer Wilson delayed in exiting the police vehicle. (T. 363, 365). Both petitioner and his mother testified about an incident that occurred on April 12, 1993, when petitioner was beaten by Syracuse police officers, after back-up officers were called to arrest him on a misdemeanor charge. (T. 349; 363-364).
Petitioner requested that the jury be charged pursuant to New York Penal Law § 35.02(2) that conduct which would otherwise constitute an offense is justifiable and not criminal when: "Such conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by [. . .] no fault of the actor and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of the injury sought to be prevented by statute defining the offense in issue."
In order to obtain a writ of habeas corpus in federal court on the ground of error in a state court's jury instructions on matters of state law, a petitioner must show that the error deprived him of a federal constitutional right. Estelle v. McGuire, supra; Blazic v. Henderson, 900 F.2d 534, 540 (2d Cir. 1990). Due process does not require that a justification instruction be given when such a charge is not supported by the evidence. Blazic v. Henderson, 900 F.2d at 541 (citing Hooper v. Evans, 456 U.S. 605, 611 (1982)). Moreover, "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of law." Blazic v. Henderson, 900 F.2d at 542 (quoting Henderson v. Kibbe, 431 U.S. 145, 155 (1977)).
As a preliminary matter, petitioner failed to present "'both the factual and the legal premises of the claim he asserts in federal court'" to the state's highest court. Blazic v. Henderson, 900 F.2d at 537 (quoting Harris v. Scully, 779 F.2d 875, 878 (2d Cir. 1985) (citations omitted)). His direct appeal, as well as his motion pursuant to Criminal Procedure Law § 330.30, was premised solely on a violation of state law and failed to present any federal constitutional question.
Although petitioner references the Fifth, Sixth and Fourteenth Amendments of the United States Constitution in ground four of the instant petition, no such claims were raised on direct appeal.
In any event, this court finds that there was insufficient evidence to mandate a justification charge under New York Law. Viewing the facts most favorably to the defendant, there must exist a "reasonable view of the evidence from which a jury could conclude that the defendant's acts were justified." People v. McManus, 67 N.Y.2d 541, 549, 505 N.Y.S.2d 43, 48 (1986); People v. Butts, 72 N.Y.2d 746, 750, 536 N.Y.S.2d 730, 733 (1988). Section 35.25(2) of the Penal Law sets forth an objective standard of reasonableness, not a subjective one. People v. Craig, 78 N.Y.2d 616 (1991).
Petitioner argues that a justification charge was required because it was reasonable for the jury to believe that he fled out of fear of police brutality, based upon the April 12, 1993, incident. At the scene of the accident, petitioner told police he had fled because he had fought with his girlfriend and was having a bad day. (T. 242). He also stated that he did not know why he did not stop and that he had been scared and frightened. (T. 256; 261). Petitioner had refused his passengers' requests to slow down and pull over. Significantly, petitioner acknowledged that he had been stopped by police for traffic infractions on two occasions after April of 1993, did not flee and was not subjected to brutality. (T. 397). The facts of this case do not reasonably suggest that petitioner was in imminent danger when Officer Wilson pulled him over for running a red light. Even if petitioner's subjective belief was that his actions were necessary to prevent imminent injury, such belief is not objectively reasonable as a matter of law. See e.g. People v. Craig, supra. Officer Wilson was alone and had not yet exited the car. There is no suggestion that he had spoken with or threatened the petitioner in any way.
This court agrees that no reasonable view of the evidence supported a justification defense. Fleeing from a police officer after being pulled over for a traffic violation is not "necessary as an emergency measure to avoid imminent public or private injury which is about to occur." N.Y. Penal Law § 35.02(2). Therefore, ground four of the petition should be dismissed.
C. Excessive Sentence
In ground five, petitioner asserts that imposition of consecutive sentences is harsh and illegal. Petitioner was sentenced as a second felony offender and received consecutive terms of three and a half to seven years for his conviction of the Class D Felony of vehicular manslaughter in the Second Degree and one and a third to four years for his conviction of the Class E Felony of leaving the scene of an accident. (N.Y. Penal Law § 125.12, N.Y. Veh. And Traffic Law § 600(2)(b)).
Second felony offender status only applies to felonies defined in the Penal Law, not the Vehicle and Traffic Law. N.Y. Penal Law § 70.06(1)(a); People v. Daddona, 181 A.D.2d 688, 689, 581 N.Y.S.2d 356, 357 (1992).
A claim that a sentence is excessive is not cognizable on federal habeas review if that sentence is within the range prescribed by state statutory law. Townsend v. Burke, 334 U.S. 736, 741 (1948); White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citation omitted); see also, Dorszynski v. United States, 418 U.S. 424, 431 (1974) (a sentence within statutory limitations is not subject to appellate review). The sentences imposed are permissible under New York law. (N.Y. Penal Law §§ 70.00; 70.06(3)).
New York law mandates that concurrent sentences be imposed "for two or more offenses committed through a single act or omission, or through an act or omission which in itself constituted one of the offenses and also was a material element of the other." N.Y. Penal Law § 70.25(2). Petitioner argues that the consecutive sentences were illegally imposed because: 1) vehicular manslaughter is a material element of leaving the scene of an accident; and, 2) both crimes were committed through a single act or transaction. This court does not agree.
The evidence presented at trial demonstrated that petitioner first caused the death of Randy Pacelli by criminally negligent operation of a motor vehicle while under the influence of drugs, and then fled the scene after the accident occurred. This court agrees with the Appellate Division's findings that the crimes of vehicular manslaughter and leaving the scene of an accident constitute separate and distinct acts, and that one is not a material element of the other. Cf. People v. Chambers, 1999 WL 12736 (1st Dep't Jan. 12, 1999) (The "actus reus" of vehicular assault in the Second Degree, i.e. operating a motor vehicle with criminal negligence and greater than .10 blood alcohol level and causing serious physical injury, does not constitute a material element of leaving the scene of an accident.). As such, ground five of the petition should be dismissed.
In 1986, the New York State Legislature statutorily overruled People v. Catone, 65 N.Y.2d 1003, 1005 (1985), in which the Court of Appeals held that reckless manslaughter was a material element of the felony of leaving the scene of an accident without reporting, and therefore, concurrent sentences had to be imposed. The Court of Appeals invited the Legislature to re-examine the statutes, finding it anomalous that leaving the scene of an accident should go unpunished. People v. Catone, 65 N.Y.2d at 1005. The legislature addressed this issue by amending the Vehicle and Traffic Law § 600(1)(a) and (2)(a), so as to eliminate the culpability requirement of the offense of leaving the scene of an accident.
5. Cumulative Error
In petitioner's sixth point, he argues that the cumulative effect of all error deprived him of a fair trial. Petitioner fails to cite the specific errors which cumulatively deprived him of a fair trial. Inasmuch as the alleged error raised in grounds one though five of the petition did not involve matters of constitutional dimension, had been fully and fairly litigated in state court, or were found to be without merit, ground six of the petition should be dismissed.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.